Filing a claim for clear and unmistakable error (CUE) can be a powerful method to gain an earlier effective date for service connection of your VA disability benefits and a large backpay award. You can file it at any time and, if successful, it is effective for the date you would have been assigned if the previous final decision that contained CUE had been granted. 38 CFR 3.400(k).

At the same time, due to the difficulty of meeting the requirements for CUE, a CUE claim is usually filed as a claim of last resort.

In order to establish CUE, the appellant must demonstrate: (1) Either the facts known at the time of the decision being attacked on the basis for CUE were not before the adjudicator, or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been “manifestly different.” Bouton v. Peake, 23 Vet. App. 70, 71 (2008). In other words, it must be undebatable that the VA made an error based on unconvertible facts or a misapplication of the law that existed at the time.

∙ If BVA has denied claim twice or more and last claim was appealed to CAVC without success, all of the BVA denials are immune from revision based on CUE. 38 C.F.R. s. 20.1400(b) (2012).

∙ If BVA decision is so recent that it is still subject to appeal to the CAVC, a CUE claim cannot be lodged until no longer subject to appeal before CAVC. See Gates v. Nicholson, 19 Vet. App. 376 (2005); May v. Nicholson, 19 Vet. App. 310, 320 (2005). (Appealing a case to the CAVC is usually a better option than filing a CUE claim because it is much more difficult to prevail on a CUE claim.)

Filing a CUE claim can result in an enormous backpay award; however, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 21.1403(c) (2012). Further, filing CUE claims is a complicated process and could be an exercise in futility if you are not sure what you are doing.

Contact the veterans disability law experts at the Berry Law Firm at (855) 278-7414. We are trained in properly filing CUE claims and assisting veterans to get the disability benefits they lawfully deserve.

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